2015 PLP 1162 (YLR)

SHOAIB SAEED, J.

This civil revision is directed against the judgments and decrees dated 5-10-2004 and 6-1-2004 passed by District Judge and Civil Judge, Jhelum respectively.

2. Brief facts of the case are that petitioners filed a suit for declaration, permanent/mandatory injunction against the respondents contending that they were owners in possession of land measuring 4 kanal 4 marla situated in Mauza Chak Isa, Tehsil and District Jhelum (fully described in head-note of the plaint). It was averred that gift deed registered at Serial No.425 dated 28-10-1954 in favour of late Muhammad Sadiq, predecessor-in-interest of the respondents followed by Mutation No. 574 dated 3-1-1966 are based on fraud, misrepresentation and are the result of connivance with the revenue officials. Late Muhammad Sadiq expired 05-06 years before filing of suit by the petitioners, the gift deed and mutation are void, illegal, in-effective qua the rights of the petitioners, the same are liable to be cancelled. By way or permanent injunction respondents were sought to be restrained from interfering in the ownership and possession of the petitioners. It was further averred that late Ghulam Rasool son of Fateh Ali was the original owner of the suit land. He was the real brother of Muhammad Yousaf (petitioner No.1) and Muhammad Din (deceased) father of Muhammad Yaqoob and Masood Ahmad petitioners Nos. 2 and

3. Late Ghulam Rasool died on or about 24 years back. He owned property which after his death, being issueless, devolved upon the predecessor-in-interest of the petitioners from whom it devolved upon the petitioners they being its owners the property is in their possession. Respondents Nos.1 to 7 filed an application/complaint on 3-4-2000 with the District Complaint Cell, Jhelum regarding possession of the suit/disputed land which was dismissed. It then transpired on the petitioners that respondents claimed ownership of the suit property on the basis of gift deed alleged to have been executed in favour of late Muhammad Sadiq (predecessor-in-interest of the respondents) by original owner of the property, late Ghulam Rasool. The gift deed was registered at No. 425 dated 28-10-1954 on the basis of which mutation No.574 dated 3-10-1966 was sanctioned. It was stated that late Ghulam Rasool never gifted the suit property in favour of late Muhammad Sadiq.

3. The respondents filed contesting written statement and raised a number of preliminary objections and denied averments of the plaint on merits. They contended that owner of the property late Ghulam Rasool transferred the same through a duly registered Gift deed (Hiba Nama) in favour of their predecessor-in-interest late Muhammad Sadiq and also delivered possession of the suit property. The original owner late Ghulam Rasool being bereft of the suit property at the time of his death, the claim of petitioners or their predecessor-in-interest to be inheritors of the same is baseless, misconceived and frivolous. The gift was made in the year 1954 whereas suit was filed in the year 2000 which was patently barred by time. Out of the divergent pleadings of the parties various issues were framed on which both parties led oral as well as documentary evidence. Petitioners produced Muhammad Walayat (P.W.1) Muhammad Sadiq (PW-2) and Muhammad Yaqoob petitioner No.2 (P.W.3). Certified copy of Gift deed (Hiba Nama) Exh.P-1, copy of Khasra Girdawari Exh.P-2, copy of registered Haqdaran-e-Zameen Exh.P-3 and attested copy of application moved to the District Complaint Cell with report and statement Exh.P-4. On the other hand in rebuttal respondents produced Muhammad Hussain son of Fateh Muhammad (DW-1), Muhammad Hussain son of Bhagu Khan (DW-2) and Muhammad Afzal DW-3 (respondent No.1) and documentary evidence Gift deed Exh.D-I and copy of register Haqdaran-e-Zameen Exh.D-2.

4. Learned counsel for the petitioners contended that gift deed was executed on 28-10-1954 but mutation was effected on 3-1-1966. The delay was primarily meant to hide the factum of alleged gift deed, it was got attested after a period of 12 years. The body of the document reveals that 2 kanal 2 marla was gifted whereas mutation was effected to the extent of 4 kanal-2 marla. The factum of alleged gift came to the petitioners knowledge after filing of application by the respondents with the District Complaint Cell on 3-4-2000 for re-possessing the suit property, thereafter, the suit was filed against the respondents on 4-9-2000. The suit, thus, was within time. Possession of the suit property was with the petitioners which was corroborated by the statement of P.W.1. who deposed that he was ploughing the field on lease. The complaint/application for re-possessing the suit property filed by the respondents was rejected. DW-1 and DW-2 in their cross-examination admitted that their depositions were based on hearsay. DW-3 during cross-examination could not explain properly the increase in land as per mutation viz. the gift deed. Learned counsel placed reliance on cases reported as Wali and 10 others v. Akbar and 5 others (1995 SCMR 284), Mst. Izzat v. Allah Ditta (PLD 1981 SC 165), Muhammad Zaman Khan v. Sher Afzal Khan and 8 others PLD 1984 SC(AJ&K) 138 and Abdul Majeed and 6 others v. Muhammad Subhan and 2 others (1999 SCMR 1245).

5. Conversely it was argued that the original owner of suit property expired in the year 1976 gift deed (Hiba Nama) was duly registered in 1954 followed by mutation in the year 1966. The donor (Ghulam Rasool) survived 22 years after registration of the gift deed and 12 years after sanctioning of mutation. He never challenged the said documents in any court of law. Respondents on account of the fact that land having become saline stopped cultivating it. Petitioners taking advantage of the same and also with the mala fide object to file a suit took possession of part of the suit property against which respondents per force had to file a complaint/application with the District Complaint Cell. The claim of knowledge as to gift deed on the basis of said application was baseless and frivolous. In the plaint as well as in their depositions petitioners claimed inheritance of vast property left by late Ghulam Rasool but remained ignorant about suit property till the year 2000. As value of the suit property increased manifold over the years, greed to re-possesses the same, led petitioners in filing the suit against the respondents. The petitioners and or their predecessor-in-interest were througho ut fully aware of the factum of gift and its mutation in favour of the respondents and or their predecessor-in-interest. The witnesses produced by the petitioners have no relevancy with the gift deed neither the scriber nor marginal witnesses were produced. The testimony by witnesses of respondents corroborates each other and they deposed that the gift under challenge was executed by late Ghulam Rasool in favour of the predecessor-in-interest of the petitioners validly. Both courts below have rightly passed the impugned judgments and decrees.

6. Arguments heard. Record perused.

7. Perusal of record reveals that gift deed (Hiba Nama) was executed in the year 1954 followed by mutation in the year 1966. The donor (late Ghulam Rasool) expired in the year 1976. During his life time he never challenged the said documents before any forum. Petitioners and their witnesses deposed that their fore-father left huge property, which devolved upon them being his lawful legal heirs. It is strange that petitioners remained unaware of this tract of land, they based their knowledge on an application filed by the respondents which is inconceivable, rather it was filed to bring their case within time. Petitioners claim of possession is repelled by Jamabandi Exh.P-3 to be seen in conjunction with gift deed and mutation, supports respondents' claim that their predecessor-in-interest was in constructive possession of the suit property. There is nothing on record that prior to the year 2000 petitioners remained in possession of the suit land. Regarding excess area in absence of any material in rebuttal on record a strong presumption exists that late Ghulam Rasool gifted his entire share in Khata to late Muhammad Sadiq.

8. With regard to depositions of respondents witnesses being hearsay their evidence is to be seen in totality read with the evidence of DW-3 Muhammad Yaqoob. In case, marginal witnesses scriber or stamp vendor had expired proof regarding their death should have been placed on the court file which was missing. The case-law relied upon by the learned counsel for the petitioners are distinguishable on facts and are not applicable to the facts of this case.

9. Petitioners who alleged fraud and misrepresentation had to prove the same through cogent, tangible and confidence inspiring evidence. The elementary principle of pleadings was that where allegations of fraud, misrepresentation, collusion or mala fide are attributed, necessary particulars and details in such context were to be unfolded in the pleadings, any bald or vague statement to such effect was of no legal consequence. Reliance is placed on Levin Traders. Karachi v. Presiding Officer, Banking Court No.2, Karachi and others (2013 SCMR 1419).

10. There is no cavil to the proposition that in cases of fraud burden to prove is shifted upon the beneficiary. However, in such like cases the initial burden is upon the person who alleges fraud and only after discharge of initial onus, it shifts upon the beneficiary to prove the transaction was bona fide and genuine. Reliance is placed on the judgments reported as Khan Muhammad v. Muhammad Din through Legal heirs (2010 SCMR 1351) Sardar Ali v. Mst. Sardar Bibi alias Sardaran through L.Rs. (2010 SCMR 1066), Allah Ditta through legal heirs v. Ali Muhammad through Iegal heirs and 20 others (2013 YLR 1756). In the present case the evidence produced by the petitioners does not suffice to shift the burden upon the respondents (beneficiaries) of gift. If the evidence of respondents is placed in juxtaposition with evidence of petitioners, the evidence of respondents is much more cogent, convincing and confidence inspiring.

11. The nut shell of the above discussion is that the petitioners failed to prove the factum of fraud, forgery and misrepresentation in the execution of gift deed and mutation, whereas respondents successfully proved (being the beneficiaries) that gift deed (Hiba Nama) followed by mutation was executed/ transferred in accordance with law. Moreover, Gift deed being a duly registered document, presumption as to its genuineness/truthfulness is attached to it, unless proved otherwise.

12. There is no misreading or non-reading of evidence, both courts rightly decided the issues which do not warrant interference. This civil revision has no force and is dismissed. AG/M-315/L Revision dismissed.